EU High Court Endorses|Right to Digitize Books

(CN) – A German university library may digitize works in its collection into e-books, but patrons cannot print out or store the works on USB drives, the European Court of Justice ruled. The Technical University of Darmstadt (Technische Universität Darmstadt) Library had obtained Einführung in die neuere Geschichte,a textbook written by Schulze W. and published by Eugen Ulmer KG, a scientific publishing house based in Stuttgart, Germany, in 2009. Though Ulmer offered to sell TU Darmstadt ebook versions of that and other textbooks on Jan. 29, 2009, the university declined, and instead digitized the book itself. That made the book available to users at the library’s electronic-reading points, which allowed no more copies than the number owned by the library, to be consulted at any one time. Patrons could print out the work, however, or store all or part of it on a USB stick, and then take either the paper or electronic files out of the library. Ulmer ultimately filed suit, seeking to prevent users from removing the book like so, and to bar the university from digitizing the Schulze book. The Regional Court (Landgerict) Frankfurt am Main refused to impede the university’s digitization on March 6, 2011, though the court did prohibit library users from taking paper or electronic versions of the books out of the library. After the university appealed, the Federal Court of Justice (Bundesgerichtshof) stayed the case and referred three questions to the European Court of Justice. In addition to questioning whether a work is subject to purchase or licensing terms where the rightholder offers to end-licensing agreements, the federal court asked whether member states may let institutions digitize works in their collections to make them available on terminals, as well as whether users may print out or store the works on a USB stick. Relying on an adviser’s June 2014 recommendation , and the Copyright Directive of the European Parliament and of the Council of 22 May 2001, the court’s Fourth Chamber ruled largely in the university’s favor Thursday. Ulmer failed to show that its offer to end its licensing agreement with the library rules out the licensing terms. The law’s concept of “purchase or licensing terms” requires that the rightholder and library “must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work,” the ruling states. Member States are not precluded from giving public libraries the right to digitize the works contained in their collections, an “act of communication,” the court found. Such a right of communication “would risk being rendered largely meaningless, or indeed ineffective, if those establishments did not have an ancillary right to digitize the works in question,” albeit not the libraries’ entire collections, the ruling states. But the law “does not extend to acts such as the printing out of works on paper or their storage on a USB stick, carried out by users from dedicated terminals installed in publicly accessible libraries covered by that provision,” the court later added. “However, such acts may, if appropriate, be authorized under national legislation.” For any such exceptions, fair compensation must be paid to the rightholders, the ruling states.